01A22612_r
10-11-2002
Kathleen A. Miller, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Kathleen A. Miller v. Department of the Navy
01A22612
October 11, 2002
.
Kathleen A. Miller,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A22612
Agency No. DON-90-65966-001
Hearing No. 120-98-9258X
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency (FAD) dated March 13, 2002, finding that it was
in compliance with the terms of a March 28, 1990 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The March 28, 1990 settlement agreement provided, in pertinent part,
that the agency would:
(3) Purge complainant's personnel file of any adverse actions taken
against her, including cancellation of and removal of all references to
her (a) suspension, (b) reprimand, (c) letter of caution, (d) interim
performance rating of minimally satisfactory, and (e) letter to Mare
Island referencing unprofessional behavior.
By letter to the agency dated March 5, 2002, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that her complaint be reinstated. Specifically, complainant alleged
that during a Merits Systems Protection Board (MSPB) hearing, an agency
official testified that he considered a suspension that complainant
served in 1988, as a basis for the penalty for her reduction in grade
and that the official's statement violated the terms of the March 28,
1990 settlement agreement.
In its March 13, 2002 FAD, the agency found no breach. Specifically,
the agency stated that according to the Human Resource Office,
Norfolk, complainant's personnel file does not contain any record of a
1988 suspension. Further, the agency stated that the agency official
indicated that he had only heard about complainant's suspension and
that when the matter arose in the MSPB hearing, the MSPB Administrative
Judge disallowed that part of the testimony because it was not part of
the reduction-in-grade decision letter, nor was it part of that case.
The record in this case contains a copy of a tape recording of an MSPB
hearing, wherein an agency official indicated that in considering the
demotion of complainant in 2001, he relied on personnel information
relating to a suspension issued to complainant in 1988.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
The instant settlement agreement, executed in March 1990, reflects that
the agency was required to purge complainant's personnel file of any
adverse actions taken against her, including cancellation of and removal
of all references to her (a) suspension, (b) reprimand, (c) letter of
caution, (d) interim performance rating of minimally satisfactory,
and (e) letter to Mare Island referencing unprofessional behavior.
The Commission finds that a reasonable interpretation of this provision
supports a finding that the provision contemplates not merely physical
expungement of adverse actions from complainant's personnel files,
but a prohibition against verbal references to such actions, as well
as attempts to rely upon such adverse actions. In the instant case,
the Commission determines that there is sufficient evidence of record
supporting complainant's allegation that the agreement was breached when
testimony during her MSPB hearing against the agency made reference
to the 1988 suspension as a basis for the penalty for complainant's
reduction in grade.
Accordingly, the agency's decision finding no breach of the settlement
agreement is REVERSED and this matter is REMANDED to the agency for
further processing in accordance with this decision and Order below.
ORDER
The agency shall specifically enforce the March 28, 1990 settlement
agreement. In particular, the agency shall take preventive action
to ensure that further reference concerning her disciplinary actions,
which were expunged pursuant to the agreement, does not occur and that
these actions are not referenced or used as the basis for any future
disciplinary actions. The agency shall notify complainant of the
preventive actions taken and send a copy of that notification to the
Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 11, 2002
__________________
Date